In the twenty years since the UK Parliament introduced devolution into the UK’s constitutional arrangements, devolution from Westminster to Northern Ireland, Scotland and Wales has developed and deepened. Devolution is now an established and significant part of the UK’s constitutional architecture. The devolution settlements were created in the context of EU membership and leaving the EU raises questions about how the constitutional arrangements of the UK will change. The debates around the devolution clauses of the European Union (Withdrawal) Bill and wider preparations for leaving the EU have exposed disagreements.
Notions of sovereignty in the UK, some people have argued, have been altered through the establishment of devolved parliaments and assemblies, embedded through twenty years of operation. However, there are different views on where sovereignty, and therefore where ultimate authority, lies. The UK Government’s position is that the sovereignty of the Westminster Parliament is a constitutional fact. Yet the range and extent of areas where Parliament can legitimately exercise its power have been altered by the devolution settlements, which has introduced political considerations that has arguably qualified sovereignty within the UK. It is the exact nature of that qualification which is contested between the devolved administrations and the UK Government. It is, therefore, important that the Government acknowledges the significance of devolution within the UK constitution and produces a “Devolution Policy for the Union” which seeks to reconcile these fundamental differences, and sets out how the government will seek to build stronger relationships between the four parts of the UK. This document should be reviewed at the start of every Parliament. It would set out the core concepts of devolution, state the UK Government’s policy, review the working of interinstitutional relationships and detail any proposals for future evolution of the devolution settlements and how they work.
There have been two basic models for the devolution of power within the UK: a reserved powers model, introduced with Scottish devolution; and a conferred powers model, introduced with Welsh devolution. Under the reserved powers model, matters reserved as the exclusive competence of the UK Parliament are listed in the devolution Act, and all other matters are, by default, within the competence devolved parliament. Under the conferred powers model, specific competencies are passed to the devolved institution by the devolution Act, but all other areas are, by default, within the competence of the UK Parliament. Since April 2018, all three devolved institutions have operated on a reserved powers model (with a slight variation in the case of Northern Ireland). However, preparations for leaving the EU have exposed inconsistencies in the UK Government’s conceptualisation of the devolution settlements. We urge the Government to make clear its understanding that the reserved powers model of devolution means that powers devolve by default to the devolved institutions and are not conferred by the UK Parliament.
The passage of the European Union (Withdrawal) Bill was the cause of considerable disagreement between the UK Government and devolved Governments. This disagreement was intensified by a lack of consultation on the Bill before it was published and introduced to the House of Commons. We recommend that all legislation which falls across devolved competencies be shared in draft with the relevant devolved institutions in order to identify and work though any differences before a Bill is published.
Many of the concerns expressed by devolved institutions in relation to the European Union (Withdrawal) Bill were addressed through amendments. Even so, the Bill eventually passed into law without the legislative consent of the Scottish Parliament. This has raised questions about the Sewel Convention that the UK Parliament will not normally legislate in areas of devolved competence without consent of the devolved legislature. We note that while this convention has been entrenched in legislation, there have been no corresponding parliamentary procedures put in place to recognise the convention in the legislative process. The evidence to this inquiry also exposed considerable ambiguity and uncertainty around the interpretation and operation of the Sewel Convention. We recommend that the Government set out clear statements of the circumstances under which legislative consent from a devolved legislature is not required by the Convention.
Any discussion of devolution would be incomplete without serious consideration of the position of England within the constitutional architecture of the UK. We received evidence pointing to a significant asymmetry between the representation of the people of England within the Union when compared with the people of Scotland, Wales and Northern Ireland. We recommend that the Government sets out, as part of its statement of “Devolution Policy for the Union”, how the different parts of England are to be fairly and effectively represented. The current programme of English devolution to combined authorities and mayors should be expanded and greater powers devolved. In addition, plans should be drawn up for how devolution to more rural areas can effectively be pursued. The metropolitan mayors in England told us that they were struggling with a piecemeal delegation of powers and functions from central Government. We recommend that whole areas of competence be properly devolved to the English mayors so that their work in their local areas can be more effective.
It is widely accepted that Common Frameworks will need to be established for when the UK leaves the EU in order to harmonise policy in areas of devolved competence where a common UK approach is necessary. Extensive work has been done by the UK and devolved Governments to agree areas where legislative and non-legislative frameworks may be necessary. However, the Government told us that it does not have a unified policy for how Common Frameworks should be established, operated, monitored and amended. These structures are being left to individual departments to develop on an ad hoc basis. Given that these Common Frameworks will become an important element of the UK constitutional architecture, a coherent policy on how they should operate is urgently needed. The Government should set out proposals as soon as possible.
We heard evidence that Whitehall has a tendency to hold on to power and that there is a continued institutional lack of understanding of devolution. In individual departments, there have been some attempts to inform officials, but the structure and culture of Whitehall generally still takes little account of the realities of devolution in the UK. In line with the recognition that devolution is a fundamental feature of the UK constitutional architecture, there should be a systematic review of how Whitehall is structured, how it relates to devolved administrations as well as local and metropolitan administrations in England, and what areas could appropriately be devolved from Whitehall to other authorities within England. Officials should also receive comprehensive training on devolution.
There is a growing consensus that the current inter-governmental relations mechanisms in the UK are not fit for purpose. The absence of formal inter-governmental relations mechanisms has been the missing part of the devolution settlement since its establishment and they should be understood to be as important to the devolution settlement as the powers held by the devolved institutions. A new system of inter-governmental relations needs to be agreed between the UK and devolved Governments and set out in statute. Any new inter-governmental apparatus should have an independent secretariat to provide a conduit for discussions. It is also vital that inter-governmental mechanisms have a clear purpose and are not just talking shops to air grievances. As such, inter-governmental bodies should be given oversight of the UK Common Frameworks. In relation to England, it became clear during the inquiry that the UK Government’s dual role as Government of the whole of the UK and of England has become a problem. The Government showed a worrying lack of engagement with the issue of English representation at inter-governmental level. England must be represented separately from the UK at inter-governmental level and the Government should produce proposals for both short and long-term ways to achieve this goal.
The prospect of an increase in the amount and importance of the work carried out at the inter-governmental level raises the question of whether this work should be scrutinised through a parallel inter-parliamentary mechanism. We believe that it should. In order to facilitate this, we recommend that formal communication mechanisms between the UK’s parliaments and assemblies be established. We also recommend that committees of the various legislatures should be able to meet jointly to scrutinise inter-governmental policy and separate inter-parliamentary committees should be set up for the same purpose. Finally, we recommend that proposals for an inter-parliamentary scrutiny body for Common Frameworks be produced by the Clerks of the four parliaments and assemblies.
Published: 31 July 2018